Things look grimmer by the day for Paul Manafort. Thanks to special counsel Robert Mueller’s investigation, President Trump’s former campaign manager has been charged with a wide array of crimes related to his years of work as a consultant for pro-Russian political factions in Ukraine. Prosecutors allege that Manafort was paid millions for this work and then conspired to hide those profits from U.S. authorities by laundering them through “scores of United States and foreign corporations, partnerships, and bank accounts.”
But with his back against the wall, Manafort, 69, has shown no inclination to give up the fight. The focus of his attacks is Mueller’s far-flung probe into the Trump campaign and Russian election meddling, calling into question not only the charges brought against him but also the special counsel’s authority to bring them at all. It’s a tenuous legal argument, but Manafort may not need to convince a judge. His reasoning might just be enough to convince President Trump.
Legally speaking, Paul Manafort’s darkest day was February 23. That was when his longtime business associate and criminal codefendant Rick Gates agreed to cooperate with Mueller’s investigation. Prosecutors already possessed a detailed record of the various corporations and accounts through which, they alleged, Manafort laundered his Ukrainian earnings. With Gates on board to fill in the gaps, it was straightforward to translate that record into a compelling narrative of financial misconduct. Most commentators thought Manafort was finished. “I think it is going to be almost impossible for Paul Manafort to go to trial if Rick Gates is a witness against him,” CNN legal analyst Jeffrey Toobin said. “This is a very document-heavy case. This is a case about abundant offshore bank accounts. How Paul Manafort could explain those while Gates is saying this whole thing was a corrupt enterprise, I think it is almost impossible. And I think the odds of Manafort now pleading guilty and cooperating just went way, way up.”
Manafort, though, opted to fight back with a barrage of procedural objections. His arguments can be summarized thus: Numerous government leaks intended to smear Manafort have made it difficult for him to receive a fair trial. Investigators violated his rights by conducting unreasonable searches and seizures at his home and storage lockers thanks to overly broad warrants. And, most crucially, the charges against him have nothing to do with the 2016 election, and thus Mueller has no jurisdiction to bring charges against him at all. Manafort’s defenders dispute any idea that all these procedural objections are tantamount to an admission of guilt. They argue, instead, that it’s only to get him to flip on Trump that Mueller bothered to bring charges against Manafort at all.
On this last issue, it looked for a moment like Manafort had caught a break on May 4. Judge T. S. Ellis, who is presiding over one of the Manafort cases, scolded prosecutors for having ulterior motives: “You don’t really care about Mr. Manafort’s bank fraud. You really care about getting information that Mr. Manafort can give you that would reflect on Mr. Trump and lead to his prosecution or impeachment or whatever.” (Manafort, confusingly, is fighting some financial charges before Ellis’s court in the eastern district of Virginia, while the indictments for conspiracy, failure to register as a foreign agent, and money laundering are being tried in D.C.’s district court.)
Meanwhile, external skepticism of Mueller’s broad mandate is on the rise as well. On May 13, Steven Calabresi, a cofounder of the Federalist Society and a former official in the Reagan and George H.W. Bush administrations, argued in a Wall Street Journal op-ed that Mueller lacked the constitutional authority to charge Manafort. “Judge Ellis should dismiss the indictment against Mr. Manafort on Appointments Clause grounds,” Calabresi wrote. “All other defendants Mr. Mueller charges, and witnesses he subpoenas, should challenge the constitutionality of his actions on Appointments Clause grounds.”
Unfortunately for Manafort, the presiding judge in his other federal trial disagreed, rejecting the motion to dismiss the charges and asserting in no uncertain terms that the prosecution has been conducted within the bounds of Mueller’s mandate from deputy attorney general Rod Rosenstein. “Given the combination of his prominence within the campaign and his ties to Ukrainian officials supported by and operating out of Russia, as well as to Russian oligarchs, Manafort was an obvious person of interest,” Amy Berman Jackson wrote. “Given what was being said publicly, the Special Counsel would have been remiss to ignore such an obvious potential link between the Trump campaign and the Russian government.” Judge Ellis will likely take his D.C. counterpart’s ruling into consideration in his own deliberations. And even if Ellis were to throw out Manafort’s Virginia trial, the D.C. charges carry a sentence of 15 to 20 years in prison.
So why not flip like Gates? Manafort might not have the luxury. He “won’t have leverage to substantially reduce his own sentence through a plea deal unless he can point the prosecutors further up the chain,” says Sol Wisenberg, who served as deputy independent counsel during the Clinton Whitewater investigation. “A Manafort guilty plea that only admits to the charges against him would not substantially help Manafort. . . . He would still spend substantial time in prison. Unless Manafort can give Mueller information about Trump or others in the Trump orbit, he’s unlikely to get anywhere near as good of a deal as Gates is getting.”
Which means Manafort has to be hoping that someone gets Mueller before Mueller gets him.
“If Trump were to either attempt to fire Mueller or to fire Rosenstein, I think the reality is that the charges against Manafort would go away. Mueller’s the person who brought the case, so that case would be dismissed, because he would no longer be bringing it,” says former federal prosecutor John Malcolm. “It is theoretically possible that another U.S. attorney’s office could re-indict the case and pursue those charges . . . but the most likely scenario is that the case would go away, because I doubt that another federal prosecutor would pick that up.”
In this respect, too, Manafort has gotten a little lucky. After months of uneasy peace, Trump has recently re-aimed his rhetorical guns at Mueller’s investigation—ever since federal agents raided the offices of the president’s personal attorney, Michael Cohen, on April 9, in what Trump called “a disgraceful situation,” “a witch hunt,” and “an attack on our country.” The raid alarmed some congressional Republicans, too. Kentucky senator Rand Paul called it “a great overstep . . . in the authority of the prosecutor.”
The White House has long insisted that Trump has the authority to fire Mueller, and the president certainly hasn’t ruled it out: “Why don’t I just fire Mueller? Well, I think it’s a disgrace what’s going on,” he said April 9. “We’ll see what happens.”
Some of Manafort’s court filings seem to have been written to advance and inflame the wider Trumpworld narratives of a special prosecutor run amok. Many echo the president’s fascination with government leaks. Or take the April 30 filing that complains that “the special counsel has not produced any materials to the defense—no tapes, notes, transcripts, or other material evidencing surveillance or intercepts of communications between Mr. Manafort and Russian intelligence officials.” It is, of course, unsurprising that Mueller has no such evidence to turn over, given that he has not charged Manafort with any crimes related to communicating with Russians. But Trump-positive media took up the story and slotted it into the broader narrative of a “leaky Mueller probe” scheming to spin criminal convictions out of thin air. Manafort’s lawyers all continue to repeat the White House’s central refrain: “There is no evidence that Mr. Manafort or the Trump campaign colluded with the Russian government.”
Although he has distanced himself from Manafort, the president has taken at least passing notice of all this. After Judge Ellis chewed out Mueller’s team on May 4, the president gleefully piled on, calling the investigation a “disgrace” and praising Ellis as “really something very special” during a speech to the National Rifle Association convention. Trump added that Manafort was a “nice guy” and said, “I truly believe he’s a good person.”
If Trump’s suspicion of Mueller continues to grow, it’s far from impossible that he would act to help Manafort—either directly by means of a pardon, or by putting the special counsel out of a job. It’s a long shot. But Paul Manafort didn’t get where he is today by playing a conservative hand.
